Free Motion for Leave to File Out of Time - District Court of Federal Claims - federal

Case 1:03-cv-00289-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS UNITED MEDICAL SUPPLY COMPANY, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. )

No. 03-289C (Judge Allegra)

DEFENDANT'S MOTION FOR LEAVE TO FILE ONE DAY OUT OF TIME Pursuant to the Court's order dated January 9, 2007, and Rules 6 and 6.1 of the Court's Rules, defendant, the United States, respectfully requests the Court to allow the attached documents to be filed one day out time. As required by paragraph 1 of the January 9 order, the attached documents include copies of all documents provided to plaintiff to comply with paragraph 3(a) of the September 8, 2006 document preservation order. The January 9 order directed us to file these documents on or before January 16, 2007. However, we missed that deadline owing to a clerical error by undersigned counsel in attempting to insert it into his electronic calendar. We regret any resulting inconvenience. Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/David M. Cohen by Mark A. Melnick DAVID M. COHEN Director

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OF COUNSEL: KATHLEEN HALLAM Chief Trial Attorney Defense Supply Center Philadelphia

s/Kyle Chadwick KYLE CHADWICK Senior Trial Counsel Commercial Litigation Branch Department of Justice Attn: Classification, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Attorneys for Defendant

January 17, 2006

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CERTIFICATE OF FILING I certify that on January 17, 2007, the attached was filed electronically. I understand that service is complete upon filing and parties and others may access this filing through the Court's electronic system.

s/Kyle Chadwick

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Army Site: Carl R. Darnall Army Medical Center Location: Port Hood, Texas Nameeank of Person filling out the form: Judy K. Tyler, GS-9, Records Management Officer Date: 29 September 3006
Paragraph 2 (in the Document Preservation Order) defines the scope of material that must be preserved. Paragraph 3(a) directs that, to the extent not previously done so, the government must describe the documents listed in paragraph 2 that were not previously identified in the affidavits. At this time, each of the facilities listed in Paragraph 8 must provide a description' of the documents it currently possesses with respect to each of the items listed below. If, with respect to each category, the facility claims it does not have any responsive documents, it shall describe, in detail, (in the document below) the efforts made to locate such documents and whether it believes such documents once existed but were destroyed, and how and when they were destroyed. This document shall be provided on or before October, 2,2006, to Ms. Kay Perry, [email protected], who shall promptly forward them to U.S.Governments counsel. Carl R. Darnall Army Medical Center has previously reported all docurnel 2. Scope. The documents subject to this order include,but are not limited to, the following: (a) Documents evidencing the methods used to by the military bases specifically identified in paragraph 8 of this order to purchase any day to day medical supplies and equipment during the period January 1, 1995, through May 3 1, 200 1, including supplies and equipment subject to Distribution and Pricing Agreements (DAPAs); (Note: All methods used to purchase Med Surg supplies during the time frame in question (e.g. ECAT, Credit Cards, BPA, DSCP Contracts, andlor any other methods that were utilized). Description of documents or reasons why none found Credit Card Orders, Receipts and Invoices,
Document Registers All records are between 1997-and2001

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(b) Documents evidencing usage data for the same period and same products as described in paragraph 2(a) above ("usage data"); (Note: Usage data is required for everything that was purchased during the time frame in question (e.g. Prime Vendor, and any spreadsheetsldata bases that were utilized). A good place to start; check to see if you have any old computer disks or any internal electronic files (e.g. check to see if you have a CD of the last 2 years of MEDLOG.) Description of documents or reasons why none found Prime Vendor records

(c) Documents evidencing the communication of such usage data described in paragraph 2(b) above to the Defense Supply Center, Philadelphia (and any successor agency) or United Medical Supply Company, Inc.; (Note: Any documents, files & databases that were utilizedlsent to DSCPPrime Vendor or any internal electronic files. (e.g. good place to start; check to see if you have any old computer disks). Description of documents or reasons why none found None were located. The previous employees were not here
during the effected time period. No electronic records, such as e-mails, etc. were left by the previous employees, if in fact they ever existed.

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(d) Documents evidencing the dollar amount of purchases 6.g. ,periodic financial reports) of the types of items described in paragraph 2(a) above; (Note: Any documents, files & databases that were utilized to track 604Med Surg spending. (e.g. good place to start; check to see if you have any old computer disks or any internal electronic files). Card Card Purchases Description of documents or reasons why none found

(e) Documents evidencing communications (internal or external) concerning usage data for the same period, but specifically including any usage data submitted to the Generation I1 prime vendor; (Note: Usage data is required for everything that was purchased during the time frame in question (e.g. Any invoices, spreadsheetsldata bases that were utilized, to include e-mails). A good place to start; check to see if you have any old computer disks or any internal electronic files (e.g. check to see if you have a CD of the last 2 years of MEDLOG.) Description of documents or reasons why none found The only known communication was a phone
call from Mr. Brown, Department of Justice to Mrs. Debra White back in October 2005.

(f) Documents evidencing any communications regarding the claims made by United Medical, whether made in this case, another case, or the Contract Disputes Act claim submitted to the contracting officer; (Note: Although it is not expected that you have any of this information, you must check and document whether you do have any of this information, or your efforts showing that you do not have any of this information.) Description of documents or reasons why none found All records were checked none found.

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(g) Documents containing catalogue information for DAPA items; (Note: Check and see if you have any catalogs from vendors or any computer disks, spreadsheetsfdata bases or any internal electronic files that may have been utilized). A good place to start; check to see if you have any UDR CD's from the time period in question.) Description of documents or reasons why none found Records were searched - no records found

(h) Documents evidencing policies and procedures to prevent diversion of purchases of the Generation I Prime Vendor Program; (Note: Check for any current or old Local, MACOM & h y guidance) Description of documents or reasons why none found Per Mrs. White, she did not know of any
written guidance.

(i) Documents evidencing any notices from DSCP concerning the failure of the Government's prime vendor electronic payment system during 1999; (Note: Although it is not expected that you have any of this information, you must check and document whether you do have any of this information, or your efforts showing that you do not have any of this information.) Description of documents or reasons why none found No records were located.

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(j) Documents evidencing amounts owed under calls issued to United Medical during the period June 1, 1997, through May 3 1,2001; (Note: Check to see if you have any documents from the Prime Vendor, and any spreadsheetsldatabases or any internal electronic files that were utilized to track open calls, to include e-mails). No records were located indicating Description of documents or reasons why none found
any outstanding debts owed.

(k) Documents evidencing destruction of records pertaining to any of the above described records; (Note: Check for any current or old Local, MACOM & Army guidance. Check for any records that show destruction of any of the above records.) Description of documents or reasons why none found To the best of my knowledge,
no records were destroyed.

(1) Document retention and destruction policies, including policies pertaining to litigation; for the time period 1997 to the present; and Note: Check for any current or old Local, MACOM & Army guidance and any email's or internal electronic files ( You should have accomplished this already, but please document if you have located new information not previously noted.) Description of documents or reasons why none found

AR 25-400-2 is the regulation governing the Army retention schedule

File Number 40-61f Title: Medical Equipment Management Disposition: COFF: At the end of the year. DEST: a. Documents pertaining to precious metals recovery should be destroyed after 5 years afier COFF unless needed for audit purposes. B. Other documents destroy 3 years afier COFF.

(m) Documents evidencing communications to preserve potentially relevant evidence concerning any claims made by United Medical.

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(Note: Any e-mail or internal electronic files (You should have accomplished this already, but please document if you have located new information not previously noted. Although it is not expected that you have any communication regarding this prior to April or May 2006, you must still check and document whether you have any evidence prior to then.) Description of documents or reasons why none found None were located.

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Cj) Documents evidencing amounts owed under calls issued to United Medical during the period June 1, 1997, through May 3 1,200 1; (Note: Check to see if you have any documents from the Prime Vendor, and any spreadsheetstdata bases or any internal electronic files that were utilized to track open calls, to include e-mails). No records were located indicating Description of documents or reasons why none found
any outstanding debts owed.

(k) Documents evidencing destruction of records pertaining to any of the above described records; (Note: Check for any current or old Local, MACOM & Army guidance. Check for any records that show destruction of any of the above records.) Description of documents or reasons why none found To the best of my knowledge,
no records were destroyed.

(1) Document retention and destruction policies, including policies pertaining to litigation; for the time period 1997 to the present; and Note: Check for any current or old Local, MACOM & Army guidance and any email's or internal electronic files ( You should have accomplished this already, but please document if you have located new information not previously noted.) Description of documents or reasons why none found

AR 25-400-2 is the regulation governing the hy retention schedule

File Number 40-61f Title: Medical Equipment Manage Description: Documents relating to acquisition and property manag Disposition: COFF: At the end of the year. DEST: a. Documents pertaining to precious metals recovery shoul

(m) Documents evidencing communications to preserve potentially relevant evidence concerning any claims made by United Medical.

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(Note: Any e-mail or internal electronic files (You should have accomplished this already, but please document if you have located new information not previously noted. Although it is not expected that you have any communication regarding this prior to April or May 2006, you must still check and document whether you have any evidence prior to then.) Description of documents or reasons why none found None were located.

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I certify that the statements on this bm are true, complete and correct to the best of r my knowledge. The attachments represent a complete accounting of availab!e documents from this facility for the periodltopics in question.

Date:

Title: Records Management Officer

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Army Site: Location: Name/Rank of Person filling out the form: Date: This addendum supplements my previous response to Paragraph 3(a) of the Document Preservation Order filed on 8 September 2006, and serves to expand on my answers regarding documents that I was unable to locate, to wit the efforts made to locate such documents, my belief as to whether such documents once existed but were destroyed, and how and when they were destroyed. The letters below refer to the corresponding subparagraphs of Paragraph 2 of the Document Preservation Order. (a) Records previously provided. (b) Records previously provided. (c) The current employees were not here during the effected time period. No electronic records, such as e-mail, etc. by the previous employees concerning this matter were discovered, if in fact, they ever existed. A check with the Center's Information Management Department reflects that no back-up tapes exist for this time period. (d) Records previous provided. (e) Information previously provided. (f) Five different individuals checked on at least four occasions for the records in the file cabinets, computers, and warehouse. No records were found. (g) The database used during the effected time period was checked by two individuals on two different occasions and no records were found regarding United Medical.
(h) Information previously provided. (i) Five different individuals checked on at least four occasions for the records in the file cabinets, computers, and warehouse. No records were found. (j) Five different individuals checked on at least four occasions for the records in the file cabinets, computers, and warehouse. No records were found. (k) Information previously provided. (l) Information previously provided.

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(m) Five different individuals checked on at least four occasions for the records in the file cabinets, computers, and warehouse. No records were found.

I certify that the statements on this form are true, complete and correct to the best of my knowledge. The attachments represent a complete accounting of available documents from this facility for the period/topics in question.

Signature: Gary M. Manuele Printed Name: GARY M. MANUELE

Date: 8 January 2007 Title: Center Counsel, Carl R. Darnall Army Medical Cen

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nter, Fort Hood, TX

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MCHM-CJA

8 January 2007

MEMORANDUM FOR RECORD SUBJECT: Supplemental Response to Document Production Order ­ United Medical Supply Company, INC. v. U.S.

1. The following documents supplemental efforts to local responsive documents. 2. In December 2006, the undersigned met with the head of the WBAMC Office of the Great Plains Regional Medical Command Contracting Activity. Mrs. Kathy Parkin verified that no blanket purchase agreements existed during the time in question through which to purchase day to day medical supplies. Additionally, she verified that any IMPAC card purchase receipts or bills, if they existed at all, would be maintained by the billing officials (i.e., Mr. Molinar and Ms. Nelson). 3. On January 5, 2007, MAJ Lee confirmed with Ms. Nelson that, due to inadequate IMPAC Cardholder training at the time, they were not aware of the requirement to maintain credit card bills, invoices, receipts, and statements for 6 years. (See enclosed electronic mail messages). As a result, documents relating to any credit card purchases were filed with the rest of the records and, consequently, destroyed after 2 years. Ms. Nelson advised MAJ Lee that she and Mr. Molinar have since received better training on their duties as IMPAC Card holders/billing officials and are now complying with the requirement to maintain those records for six years. 4. Point of contact is the undersigned at (915) 569-1029.

Encl

//ORIGINAL SIGNED// PAUL L. LEE MAJ, JA Center Judge Advocate

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Enclosure

-----Original Message----From: Nelson, Lynn C WBAMC Sent: Friday, January 05, 2007 6:34 AM To: Lee, Paul L MAJ WBAMC; Molinar, Oscar A WBAMC Subject: RE: 1000 APPOINTMENT MAJ Lee/Oscar, At the time this all transpired, we were not taking the on-line training, but rather, fce-to-face at the local contracting office. To the best of my knowledge, we were not told to maintain credit card records for six years, or we would have done it. Our local training left out a lot of important information, which is why we now do the training on line.

Lynn :-) -----Original Message----From: Molinar, Oscar A WBAMC Sent: Friday, January 05, 2007 6:20 AM To: Lee, Paul L MAJ WBAMC; Nelson, Lynn C WBAMC Subject: RE: 1000 APPOINTMENT MAJ Lee, I have moved to Environmental Services. review the files and respond. Thank you, Oscar

I'll have to ask Ms. Nelson to

-----Original Message----From: Lee, Paul L MAJ WBAMC Sent: Thursday, January 04, 2007 4:14 PM To: Molinar, Oscar A WBAMC; Nelson, Lynn C WBAMC Subject: RE: 1000 APPOINTMENT Oscar/Lynn, I think I asked you all this question before, but just to double check: Do you still have the credit card records from purchases up to 6 years ago? If not, who maintains those records for your purchases? As I was going through certifying/billing official training I thought about United Medical's Lawsuit when the training advised that we have to keep the records for 6 years. I couldn't recall our discussion with respect to credit card records that may include a record of purchases that were for day to day medical supplies (among other things). Please let me know soonest if possible. I have to respond back to Kay Perry at MEDCOM about something else dealing with UM NLT COB tomorrow and wanted to provide supplemental response on the credit card records as well.

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Hope you all had a great holiday. V/R MAJ Lee

PAUL L. LEE MAJ, CJA William Beaumont Army Medical Center 5005 N. Piedras Street El Paso, Texas 79920-5001 (915) 569-2131 FAX (915) 569-1850 ATTORNEY CONFIDENTIALITY NOTICE-FOR OFFICIAL USE ONLY. The information contained in this e-mail and any accompanying attachments may constitute attorney work product and/or client advice, which are legally privileged. This information is for official use only. It should not be released to unauthorized persons, and should be maintained in a separate file. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is prohibited. If you received this e-mail in error, please notify me immediately by return e-mail or by calling (915) 569-2131. -----Original Message----From: Molinar, Oscar A WBAMC Sent: Friday, September 29, 2006 9:07 AM To: Lee, Paul L MAJ WBAMC; Nelson, Lynn C WBAMC; Bird, Amy M CPT WBAMC Subject: 1000 APPOINTMENT MAJ Lee, We will be on our way shortly and will see you at 1000 this morning in your office. Oscar Molinar

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Army Site: Location: Name/Rank of Person filling out the form: Date: This addendum supplements my previous response to Paragraph 3(a) of the Document Preservation Order filed on 8 September 2006, and serves to expand on my answers regarding documents that I was unable to locate, to wit the efforts made to locate such documents, my belief as to whether such documents once existed but were destroyed, and how and when they were destroyed. The letters below refer to the corresponding subparagraphs of Paragraph 2 of the Document Preservation Order. (a) Records previously provided. (b) Records previously provided. (c) The current employees were not here during the effected time period. No electronic records, such as e-mail, etc. by the previous employees concerning this matter were discovered, if in fact, they ever existed. A check with the Center's Information Management Department reflects that no back-up tapes exist for this time period. (d) Records previous provided. (e) Information previously provided. (f) Five different individuals checked on at least four occasions for the records in the file cabinets, computers, and warehouse. No records were found. (g) The database used during the effected time period was checked by two individuals on two different occasions and no records were found regarding United Medical.
(h) Information previously provided. (i) Five different individuals checked on at least four occasions for the records in the file cabinets, computers, and warehouse. No records were found. (j) Five different individuals checked on at least four occasions for the records in the file cabinets, computers, and warehouse. No records were found. (k) Information previously provided. (l) Information previously provided.

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(m) Five different individuals checked on at least four occasions for the records in the file cabinets, computers, and warehouse. No records were found.

I certify that the statements on this form are true, complete and correct to the best of my knowledge. The attachments represent a complete accounting of available documents from this facility for the period/topics in question.

Signature: Gary M. Manuele Printed Name: GARY M. MANUELE

Date: 8 January 2007 Title: Center Counsel, Carl R. Darnall Army Medical Cen

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nter, Fort Hood, TX